Greater New Orleans

River Birch landfill executive Dominick Fazzio, left, leaves federal court in November 2011. A judge Thursday denied a motion to dismiss his indictment, but the ruling said some testimony of alleged prosecutorial misconduct "was credible."
(Photo by The Times-Picayune archive)

The case "has crumbled and I had hoped to do the mop-up work now. Unfortunately, I'll have to wait to do that at trial." -- Arthur 'Buddy' Lemann

A federal judge's ruling Thursday refusing to dismiss charges against River Birch landfill executive Dominick Fazzio ended what was likely Fazzio's final shot at tearing down his indictment before a Dec. 17 trial. But for prosecutors, the victory came with a price.

In her two-page ruling, U.S. District Judge Ginger Berrigan said some evidence at a hearing Wednesday alleging misconduct in U.S. Attorney Jim Letten's office "was credible and therefore disturbing."

The stinging phrase referred to part of an affidavit by Tim Wilson Sr., a Houston private investigator who took the stand Wednesday. Wilson's main assertion was that former prosecutor Sal Perricone and Assistant U.S. Attorney Jim Mann expressed in 2011 an undisclosed verbal understanding that the government wouldn't seize defendant Mark Titus' properties.

Titus, who was cooperating against Fazzio at the time, is due to begin a five-year prison sentence Friday.

Prosecutors have denied that there was any secret agreement with Titus. And Berrigan's order Thursday said other parts of Wilson's affidavit "were simply not credible." She didn't indicate which parts she found credible.

But Berrigan also said that if any misconduct occurred, "the effect has been only to weaken the case" against Fazzio.

The wording of her decision wasn't the first indication that Berrigan has reservations about how the government has pursued this case. Last month, she referred to "the troubled history of this prosecution" in granting Fazzio the evidentiary hearing held this week.

Washington D.C. prosecutors now overseeing the case have refused to comment. But attorneys for Fazzio and Titus noted the language of Berrigan's decision.

"This case is disturbing," said Fazzio's attorney, Arthur "Buddy" Lemann. "It has crumbled and I had hoped to do the mop-up work now. Unfortunately, I'll have to wait to do that at trial."

Different judges, different words

Fazzio and Titus have both said they're innocent of the charges accusing them of fraud and money laundering in connection with an alleged scheme to embezzle about $1 million from Garner Services, a firm Titus co-owns. The men are set to be tried together next month.

Berrigan's order denying Fazzio's motion to dismiss the charges against him said that to throw out an indictment before trial, Fazzio needed to show that any government misconduct resulted in "actual prejudice to the accused." On the contrary, Berrigan indicated that if any prosecutorial misconduct took place, it would actually help Fazzio's defense.

"Even if the defendant's allegations of prosecutorial misconduct are true, the effect has been only to weaken the case against the defendant, not strengthen it," Berrigan wrote.

Berrigan's wording was markedly different from the language U.S. District Judge Ivan Lemelle used last month, when he rejected Titus and Wilson's assertions in a separate case that there was a secret deal with prosecutors. Lemelle categorically declared the assertions were not credible, while Berrigan deemed at least some of Wilson's testimony credible.

Lemann made it clear that he plans to challenge the government's conduct at trial, perhaps including the online scandals of Perricone and Jan Mann, the former No. 2 at Letten's office. Both posted comments online about subjects of federal prosecutions and could face disciplinary proceedings.

Lemann didn't bring up Mann at the evidentiary hearing Wednesday, surprising observers who had expected the recent scandal to add ammunition to the claims of prosecutorial misconduct. Lemann said Mann's actions constituted misconduct, but that the hearing Wednesday remained focused on the alleged secret deal between prosecutors and Titus. That included Jim Mann, Jan Mann's husband.

"If the government had presented Jim (Mann), her misconduct would have come up," Lemann said.

Titus' new motions

Berrigan's ruling Thursday didn't end the legal maneuvering in the case. Just hours before Berrigan's decision, Titus filed his own motion to dismiss 14 current charges against him. The motion said a 2011 deal with prosecutors that led to Titus' guilty plea precluded additional charges for the same Garner Services scheme.

As part of his plea deal, Titus in 2011 pleaded guilty to one count of conspiracy to commit mail fraud, related to the alleged Garner Services scheme. But Titus and prosecutors had a falling-out in the spring, and the government in October slapped Titus with the new fraud and money laundering charges. The new charges came just days after Titus was sentenced to five years in prison for the single count he admitted to in 2011.

In the new motion, filed in Berrigan's court, attorney Jimmy Ardoin argued that Titus plea deal said prosecutors would "not bring any additional charges" related to the Garner Services fraud scheme and the money laundering of its proceeds.

The motion includes an affidavit Titus signed Wednesday, saying he understood that his guilty plea last year meant the government "could not charge me" with any other crimes related to Garner Services.

Titus' affidavit said that had he known he would face additional charges, "I would have instructed my defense counsel to reject the plea agreement, plead not guilty and go to trial."

Observers have noted that the government could argue Titus breached the plea deal himself, by refusing to cooperate as required and by failing to accept responsibility for his crime at sentencing. But Ardoin said the government had opportunities before to try to invalidate the agreement and has not done so.

Titus is set to report Friday to the federal penitentiary at Oakdale, 40 miles southwest of Alexandria. He asked Judge Lemelle on Thursday to postpone the surrender date until after his December trial, but Lemelle rejected that request.

CORRECTION: An earlier version of this story erroneously said Mark Titus was sentenced to six years in prison. His sentence is five years.